555579 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 : 

MARTHA STEELE, : 

Plaintiff, : 

: 

 : Civil Action 

 v. : No. 2002 C 4347 

 : 

HCI DIRECT, : 

 Defendant. : 

__________________________________________: 

DEFENDANT HCI DIRECT INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS 

MOTION FOR RECONSIDERATION

Defendant, HCI Direct, Inc. (“Defendant” or “Company”), by and through its undersigned 

counsel, Obermayer Rebmann Maxwell & Hippel LLP, hereby submits this Memorandum of 

Law in Support of its Motion for Reconsideration of this Court’s order denying its motion to 

dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(5). 

On July 29, 2004, despite expressly finding that plaintiff’s failure to timely serve Defendant 

with her original complaint and her amended complaint was without good cause, the Court 

entered a Memorandum and Order denying Defendant’s motion to dismiss under Fed. R. Civ. P. 

12(b)(5) because the Defendant failed to establish any prejudice from the extended delay in 

service. 

The Court must reconsider its order based on newly presented evidence that demonstrates 

prejudice. Plaintiff’s inexcusable delay in serving a complaint has hamstrung Defendant’s 

ability to refute plaintiff’s allegations. During plaintiff’s inexcusable delay, several key 

witnesses identified by plaintiff have left Defendant’s employ and have not responded to 

Defendant’s requests to provide information. One missing witness is a decision-maker to 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 1 of 9
555579 2

Defendant’s decision to terminate Plaintiff. Because Plaintiff’s inexcusable delay prejudices 

Defendant’s ability to defend itself, the Court must dismiss the complaint. 

I. FACTS AND PROCEDURAL HISTORY1

Plaintiff, Martha Steele (“Plaintiff”) last worked for Defendant almost four (4) years ago 

– on or about November 6, 2000. Plaintiff filed her original complaint of employment 

discrimination against Defendant on July 19, 2002, but unreasonably waited approximately 397 

days – well over one (1) year – before serving the complaint (and a subsequently filed amended 

complaint) on Defendant on August 20, 2003. 

In September 2003, Defendant filed a motion to dismiss the complaint for Plaintiff’s 

failure to timely serve her complaint and amended complaint within 120 days of filing under 

Fed. R. Civ. P. 4(m). Defendant’s motion remained pending for approximately ten (10) months 

before the Court entered its order denying the motion to dismiss the complaint on July 29, 2004. 

The Court declined to dismiss Plaintiff’s pleadings because, although she did not have good 

cause for her prolonged delay in serving her complaints, Defendant failed to establish prejudice 

resulting from the delay. 

 However, newly presented evidence demonstrates that Plaintiff’s inexcusable delay has 

caused Defendant significant undue prejudice. In her amended complaint2

, Plaintiff identified 

several individuals as having specific knowledge of her alleged disability (depression), requests 

for disability accommodation, and unequal pay. Plaintiff specifically alleges that she told her 

supervisor, Dave Weitner (“Weitner”), of her disability and that Defendant did not afford her 

reasonable accommodation for her disability. See Plaintiff’s Amended Complaint, ¶¶17-18. She 

 

1

 Except where specifically noted otherwise, the facts and procedural history are those set forth in the Court’s 

Memorandum and Order, entered July 29, 2004. A true and correct copy of that Memorandum and Order is attached 

hereto as Exhibit “A.” 

2

 A true and correct copy of Plaintiff’s amended complaint (without exhibits) is attached hereto as Exhibit “B.” 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 2 of 9
555579 3

also alleges that she informed Suzanne Roper (“Roper”), Vice President and Director of 

Defendant’s Art Services Department of familial tragedies that cause her to suffer extreme 

emotional trauma. See Plaintiff’s Amended Complaint ¶¶20, 26 and 35. However, both Weitner 

and Roper have long since separated from the Company and have not responded to the 

Company’s requests for information concerning Plaintiff’s allegations. See McDermott’s 

Declaration3 ¶¶5, 6 and 7. In fact, Roper, who was an important decision-maker (having 

approved the termination of plaintiff’s employment), was terminated as part of a reduction in 

force at the Company in August 2001. See McDermott’s Declaration ¶¶5 and 8. 

 In addition, in the Charge of Discrimination filed with the U.S. Equal Employment 

Opportunity Commission, Plaintiff identified other key witnesses who also no longer work for 

the Company and who have not responded to the Company’s requests for information 

concerning Plaintiff’s allegations. See McDermott’s Declaration, Exhibit “A.” In the Charge of 

Discrimination, Plaintiff alleged that Georg Purvis (“Purvis”)(incorrectly spelled “George 

Pervis”), then Art Director for Defendant, was aware of Plaintiff’s workplace complaints of 

hostile work environment and he stated that she would get fired if she pursued the matter. See

McDermott’s Declaration, Exhibit “A.” She also alleged that Bob Olson (“Olson”) was a male 

comparator with substantially similar job responsibilities who was paid more money and had 

better benefits than Plaintiff. See McDermott’s Declaration, Exhibit “A.” Neither Purvis who 

was laid off as part of the Company’s reduction in force in August 2001) nor Olson, work for 

Defendant any longer and neither has responded to Company requests that they provide 

information concerning Plaintiff’s allegations. 

 

3

 The Declaration of Bernadette McDermott, Defendant’s current Human Resources Director, is submitted herewith 

in support of Defendant’s Motion for Reconsideration.. 

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555579 4

II. LEGAL ARGUMENT

Plaintiff’s Complaint Should Be Dismissed Because Newly 

Presented Evidence Demonstrates That Her Inexcusably Long 

Delay In Serving the Complaint and Amended Complaint Has 

Caused Defendant To Suffer Severe and Extreme Prejudice 

 A federal district court has the inherent power to reconsider even interlocutory orders. 

American Guarantee and Liability Ins. Co. v. Fojanini, 99 F.Supp.2d 558, (E.D.Pa. 2000)(citing

United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). A party may move for reconsideration 

based on any of three grounds: (1) an intervening change in the controlling law; (2) the 

availability of new evidence; or (3) the need to correct a clear error of law or fact or to prevent 

manifest injustice. United States v. Watkins, 200 F.Supp.2d 489, 490-91 (E.D.Pa. 2002); Blue 

Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F.Supp.2d 394 (E.D.Pa. 2002). 

In this case, the Court must grant Defendant’s motion for reconsideration of its order 

entered on July 29, 2004 based on the availability of new evidence demonstrating that key 

witnesses identified by Plaintiff are no longer employed by Defendant and are not otherwise 

available or likely to testify voluntarily. 

As the court is aware, the salient events occurred when plaintiff was employed by 

Defendant in 1999 and 2000 -- about four (4) years ago. 

In her declaration, Bernadette McDermott, Defendant’s Director of Human Resources, 

explains that at least four (4) key witnesses identified by Plaintiff have left Defendant’s employ, 

cannot be located, and even if they could be located, may not voluntarily testify. One missing 

witness allegedly witnessed or received information from Plaintiff regarding her alleged 

disability and harassment. Another was a decision-maker with respect to Plaintiff’s termination. 

Moreover, even if they were to testify, these and other witnesses’ memories of events that 

happened four (4) years ago have certainly dimmed. Because Weitner, Roper, Purvis and Olson 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 4 of 9
555579 5

are no longer employed by the Company (each having separated from the Company over the past 

four (4) years) and have not responded to the Company’s requests that they provide information 

concerning Plaintiff’s allegations of employment discrimination, the Company is severely 

prejudiced in its ability to defend this case. See Boley v. Kaymark, 123 F.3d 756, 759 (3d Cir. 

1997) (“Delay may damage a defendant’s ability to defend on the merits”). 

II. CONCLUSION

This Court must reconsider its order denying Defendant’s motion to dismiss the 

complaint because Plaintiff had no good cause for her prolonged delay in serving her complaint 

and Defendant has suffered severe and extreme resultant prejudice as a result of that delay. 

 

 

Joseph J. Centeno 

Jacob M. Sitman 

Obermayer Rebmann Maxwell & Hippel LLP

One Penn Center, 19th Floor 

1617 John F. Kennedy Boulevard 

Philadelphia, PA 19103 

(215) 665-3000 

August 12, 2004 

Attorneys for Defendant, 

HCI Direct, Inc.

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 5 of 9
555579 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 : 

MARTHA STEELE, : 

Plaintiff, : 

: 

 : Civil Action 

 v. : No. 2002 C 4347 

 : 

HCI DIRECT, : 

 Defendant. : 

__________________________________________: 

DEFENDANT, HCI DIRECT, INC.’S 

MOTION FOR RECONSIDERATION

 Defendant, HCI Direct, Inc. ("Defendant"), respectfully moves this Court to reconsider its 

order entered on July 29, 2004, denying Defendant’s Motion To Dismiss the Complaint under 

Fed. R. Civ. P. 12(b)(5) for plaintiff’s failure to serve her complaint and amended complaint 

within 120 days of filing because newly presented evidence demonstrates that plaintiff’s 

inexcusably long delay in service has caused Defendant severe and extreme prejudice. 

Specifically, the evidence demonstrates that key witnesses have left Defendant’s employ, cannot 

be located, and even if they could be located, they might not voluntarily testify and their 

memories of events over four (4) years ago likely have dimmed. 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 6 of 9
555579 7

For these reasons and those set forth in the accompanying Memorandum of Law, 

Defendant respectfully requests that the Court reconsider its Order denying Defendant’s motion 

to dismiss the Complaint. 

 Respectfully submitted, 

 

Joseph J. Centeno 

Jacob M. Sitman 

 OBERMAYER REBMANN MAXWELL & HIPPEL LLP 

 1617 John F. Kennedy Boulevard 

 One Penn Center, 19th Floor 

 Philadelphia, PA 19103-1895 

 (215) 665-3000 

Dated: August 12, 2004 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 7 of 9
555579 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 : 

MARTHA STEELE, : 

Plaintiff, : 

: 

 : Civil Action 

 v. : No. 2002 C 4347 

 : 

HCI DIRECT, : 

 Defendant. : 

__________________________________________: 

ORDER

 AND NOW, this ________ day of __________, 2004, upon consideration of the Motion 

of Defendant, HCI Direct, Inc. to reconsider this Court’s Order denying Defendant’s Motion to 

Dismiss the Complaint, and in consideration of the Memoranda in support and in opposition, it is 

hereby ORDERED that: 

 1. The Motion for reconsideration is GRANTED; and 

 2. Plaintiff's Complaint and Amended Complaint are DISMISSED with Prejudice. 

 

 BY THE COURT: 

 

 BRUCE KAUFFMAN, J. 

 UNITED STATES DISTRICT COURT 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 8 of 9
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CERTIFICATE OF SERVICE

 I hereby certify that on this 12th day of August, 2004, I caused the foregoing Motion of 

Defendant, HCI Direct, Inc. for Reconsideration and supporting memorandum to be served via 

First-Class mail, postage prepaid on the following: 

Karin M. Gunter, Esquire 

7323 North 21st Street 

Philadelphia, PA 19138 

 

 Joseph J. Centeno 

Case 2:02-cv-04347-BWK Document 29 Filed 08/12/2004 Page 9 of 9